Child Protective Services and Parental Rights Termination Issues

While I normally write my own blogs, this month I wanted to largely quote an article entitled Fighting for your Children, written by Ben Giles and published on August 2, 2013. The Article as published is included below.

CPS gets involved in many cases, sometimes during a divorce, and other times independent from the divorce. The process is mired down by bureaucracy and is a difficult, time consuming, and costly process.

If you are involved in a divorce, legal separation, or annulment case or other family law case in which CPS has become involved, and if you would like experienced legal representation, please call 800-899-2730 and ask to speak with Douglas C. Gardner, or visit our website at www.yourarizonadivorcelawyer.com.

** (Disclaimer) I would note that my entire practice is focused on family law and divorce related cases. However, by the ethical rules of Arizona Attorneys, I cannot claim that I am “an attorney specializing in family law” as referenced in the article, but I can state that I practice exclusively in family law and that I am experienced in these cases.

Fighting for your children

Peoria police may not have had enough evidence to support charging Sen. Rick Murphy with molesting two boys in his care, but Child Protective Services believes the latest investigation of the Peoria Republican for sexual abuse allegations is reason enough to take away not just his foster children, but his four adoptive daughters.

Now Murphy finds himself mired in a process that an increasing number of families in Arizona face: a lengthy dependency proceeding prompted by CPS to determine if Murphy and his wife Penny can continue to raise their children.

The lengthy and secretive process — some attorneys estimate Murphy’s fight with CPS could last up to year as the agency and lawmaker navigate Maricopa County’s Juvenile Court — follows a roughly one- month investigation by Peoria police of allegations by Murphy’s adopted son that the senator molested the boy repeatedly during the past six years.

The accusations prompted investigators to take a second look at a 2011 case, another instance when a boy in Murphy’s care claimed the senator sexually abused him. But in both cases, police determined there weren’t enough witnesses — the children were the only ones who could say the abuse occurred — or evidence to support charges against Murphy.

CPS officials are still looking into the matter. According to a Peoria police report, the agency is tracking down for interviews all boys who’ve ever been in Murphy’s care. And on July 17, case workers returned to the Murphy’s Peoria home and removed his daughters.

Tasya Peterson, director of communications for the Department of Economic Security, declined to answer questions about the investigation.

“Due to the ongoing case involving this family, and to protect the confidentiality of children and families and best interests of children, the department has no further comment,” Peterson said July 24.

Police records show a dependency hearing was scheduled the week of July 22. Attorneys familiar with the process said it was likely a preliminary protective hearing where a judge, CPS workers, lawyers for the children and the parents discuss arrangements for how the children will be cared for as the case moves forward in Juvenile Court.

Little else is known about the agency’s case against Murphy.

Dependency proceedings are closed in Juvenile Court, making it difficult to track even basic details such as scheduled court appearances.

If Murphy chooses to fight any accusations CPS makes against him, statute requires his case go to trial within 90 days of the time the Attorney General’s Office filed a dependency petition in court. A petition must be filed within 72 hours of the children’s removal.

“Bluntly, even when I’m the attorney, it’s hard for me to get information about the case,” said Douglas Gardner, a family law attorney who has dealt with child custody and severance cases.

Guilty until proven innocent

The secret nature of the cases is designed to protect the children involved, said Sally Jones, CEO of Human Resources Training, Inc., a foster agency in Maricopa County.

Murphy lashed out at CPS shortly after Peoria police released a report announcing it would not press charges against him. The senator suggested the agency may have removed his daughters as retaliation for his work in the Legislature to change the way CPS operates, and he berated the agency for failing to give him information on upcoming hearings. Murphy said he would have no further comment on the situation as the dependency proceeding moves forward.

Attorneys with experience in Juvenile Court, however, said Murphy’s case is far from rare.

“Unfortunately it’s not a unique circumstance these children are going through,” said Tamera Shanker, a children’s advocacy attorney. “I would turn it the other way. It’s a pretty typical scenario.”

CPS has broad powers to remove children temporarily from the parent’s custody based simply on the belief that a child may be in harm’s way, Gardner said.

Even in cases such as Murphy’s — where a police investigation determined there wasn’t enough evidence to charge him with sexual abuse — the investigation alone can give CPS workers enough pause to remove the children and take a closer look themselves.

“All they have to show to start this whole proceeding is somebody has to, under oath, state that reasonable grounds exist to believe temporary custody is clearly necessary to protect the child,” Gardner said.

Once that occurs, it could be months before parents get to see their kids again, he said.

“With CPS, it feels like you are guilty until proven innocent,” Gardner said.

In for a rough battle

For many of the same reasons it’s not that difficult for CPS to remove a child from a home. CPS also has a lower burden of proof when it comes to making a case that a parent is guilty of abuse, neglect, or any other accusation they make against a parent.

“A criminal charge is beyond a reasonable doubt. In a dependency (proceeding) you have to have probable cause — more likely than not,” said Chris Phillis, director of Maricopa County’s Office of the Public Advocate. “(That’s) not a real high standard to prove. There are numerous situations where you wouldn’t be able to bring criminal charges, but you could have a dependency examined.”

In a case such as Murphy’s, where CPS suspicions are based on children’s accusations of sexual abuse — even when one of the children retracted those charges — Murphy may be in for a tough battle with the agency.

In most dependency proceedings, reunification with the parent is the goal, even when a parent accepts the accusations CPS makes against them. Essentially, it’s an admission of guilt in the eyes of the agency, but not legally speaking in the eyes of the court, Phillis said — but it can help speed up the process of reuniting parent and child.

Early in the process, parents have a choice of whether to submit to any accusations CPS makes against him or to fight their claims, she said.

But in a sexual abuse case, CPS sometimes asks the courts to bypass reunification efforts and move immediately for severance and adoption by another family. CPS must provide enough evidence to convince a judge that a child would not be safe if reunified with a parent, Phillis said.

“The only time they don’t seek reunification is if it’s a clear-cut case of abuse,” she said.

Burden of suspicion

Murphy could try to challenge CPS early in the dependency proceeding process for the immediate return of his daughters, but rarely are such attempts successful, Phillis said. That is because of the burden of proof CPS is required to show, which is more like a burden of suspicion.

In his July 24 statement, Murphy complained that CPS hadn’t tried to find a proper placement for his children, opting to place them in a group home an hour before they even arrived to take away the kids.

Though CPS has a mandate to do due diligence in finding an alternative temporary placement to a group home, CPS will sometimes bypass trying to place a child with a relative — as Murphy said they should have — if CPS thought the child was in imminent danger, Shanker said.

Anne Ronan, an attorney with the Arizona Center for Law in the Public Interest, said, “Guilt or innocence aside, what he’s complaining about happens to people every day… think of what that does to the kid.

Regardless of the relationship, that’s that kid’s parent.”

The dependency hearing process can take months, and up to a year to make a final determination of whether a child can be returned to his or her parents. The process is sped up for children 3-years-old and under, but according to police records, Murphy’s daughters are all older.

“It’s a very frustrating process, especially for those wrongly accused but even for those rightly accused,” Gardner said. “It’s a very frustrating process in which bureaucracy completely overrides any logic.”

Dependency backlog in juvenile courts

As Arizona’s juvenile courts are increasingly flooded with dependency cases, attorneys say it’s more difficult to schedule cases and finish dependency proceedings in a timely manner.

Attorneys familiar with dependency proceedings say it takes months to resolve cases such as Sen. Rick Murphy’s. The proceedings are used to find a safe, permanent placement for a child and determine if kids can be reunited with their parents. The Peoria Republican’s children were removed by Child Protective Services on July 17 as the agency investigates allegations he molested two boys in his care.

Chris Phillis, director of Maricopa County’s Office of the Public Advocate, said if the senator chooses to fight accusations against him, the case must be heard within roughly 90 days of his children’s removal.

At issue is a backlog of cases in juvenile courts. In the past two years the number of dependency petitions — requests to take abused and neglected children from their parents — increased by a net volume of 533 percent.

The Child Protective Services Division of the Attorney General’s Office filed 272 more cases than it closed in fiscal 2010. By fiscal 2012, that number increased to 1,722 more cases opened than closed.

The Attorney General’s Office reported 16,279 active dependency cases in December 2012. A majority of dependency cases are prompted by Child Protective Services, according to Douglas Gardner, an attorney specializing in family law.

Tamera Shanker, a children’s advocacy attorney, said the backlog in cases can make it difficult to even schedule a trial. Depending on how many days a case is expected to take, lawyers for CPS and the parents may struggle to find, for instance, three consecutive days on a judge’s calendar open for trial.

The length of the process can vary, however, depending on whether CPS seeks to reunite the parents with their children or find a new adoptive home. In all dependency cases, reunification must be the first intention, but in certain cases — such as those where physical abuse is alleged — the agency may speed up the process to find the child a permanent home if there’s no chance of reunification.